Opinion
No. 406 C.D. 2012
08-17-2012
Clarence Phippen, Appellant v. Sgt. Hendrix and Department of Corrections
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Appellant Clarence Phippen (Phippen) appeals from an order of the Court of Common Pleas of Wayne County (trial court). The trial court sustained preliminary objections filed by the Pennsylvania Department of Corrections, Jeffrey Beard, Secretary of Corrections, Sergeant Hendrix (a corrections officer at the State Correctional Institution at Waymart (SCI-Waymart)), Joe Nish (the Warden of SCI-Waymart) (collectively, DOC), in response to a complaint filed by Phippen against DOC. We affirm the trial court's order.
Phippen does not identify all of these individuals as defendants in the text of his complaint, but does identify them as defendants in the caption of the complaint.
In his 248-paragraph "Complaint for Punitive Damages, Retaliation," Phippen averred numerous factual matters relating to or arising from three "occurrences." With regard to the first "occurrence," Phippen alleged that on April 3, 2008, based upon a fabricated misconduct, DOC removed him from the general prison population and placed him in the Restricted Housing Unit (RHU). Phippen alleged that seven corrections officers (whom he refers to as the "gang of 7") escorted him to his room in the RHU, where he found his personal property. The corrections officers required Phippen to consolidate his personal belongings into four boxes. His legal papers filled two of the boxes, and some of his other property filled a third box. All of the boxes had been filled in a haphazard manner without care or attention to the handling of his property. While Phippen was filling the fourth box, one of the corrections officers began to tape up the three filled boxes. Phippen was unable to fit his sneakers into the fourth box, and a corrections officer told him that it was too late to place the sneakers in one of the sealed boxes. Phippen averred that his sneakers and other personal property were left out of the boxes. Phippen also asserted that the corrections officers referred to him as "stupid" and commented that he "had 16 years of education." (Complaint ¶¶ 11-24.)
Phippen alleged that he filed a grievance in connection with this occurrence (Grievance no. 225576). In this grievance, Phippen objected to the failure or refusal of DOC (or the corrections officers at the RHU) to provide him with the identical storage space provided to him in his cell in the general prison area (which he alleged is two boxes and a cabinet). He objected to the prompting of the corrections officers to move more quickly in reorganizing his belongings. Phippen also contends that he challenged the constitutionality of the actions and the policies involving the loss of some of his property. According to Phippen, his grievance also raised issues involving alleged criminal conduct of the corrections officers constituting "criminal mischief," and a civil rights violation for retaliation. (Complaint ¶¶ 25-31.)
Phippen further averred that grievance officer Lieutenant Joseph Toolan responded to the grievance on April 21, 2008. (Complaint ¶ 38; Exhibit T.) Lieutenant Toolan denied the grievance, finding that Phippen
was given a choice to either have the leftover items sent home or destroyed. A confiscation slip was filled out and you refused to sign the confiscation slip or inform the staff what to do with the excess items. You state in your grievance that you ignored the officers, therefore the excess items were destroyed.(Complaint Ex. T.) Phippen appealed Lieutenant Toolan's denial of the grievance to Warden Nish. In that appeal, Phippen reiterated his objection to the amount of storage provided for his belongings in the RHU, the loss of his property as a constitutional violation, and the alleged use of seven corrections officers for the purpose of humiliating, tormenting, provoking, and harassing him. (Complaint ¶¶ 50-57.) Phippen alleged that Warden Nish also rejected his assertions regarding allegations that SCI-Waymart and its staff failed to comply with DOC policy regarding the amount of storage to which an inmate in the general prison population or the RHU is entitled. Warden Nish also determined that Phippen was offered the option of having his excess property returned to his home, and by failing to elect that option, the correctional officers disposed of the property by default. (Complaint ¶¶ 58-62.) Phippen appealed Warden Nish's determination to DOC's Camp Hill Grievance Committee, which upheld the denial of Phippen's grievance.
With regard to the second "occurrence," Phippen alleged that on April 23, 2009, he was again placed in the RHU for an investigation of an alleged violation of rules. The DOC form documenting this action, DC-141, also indicates that in addition to investigation of Phippen, DOC placed him in the RHU because of "a need for increased control pending disposition of charges or completion of the investigation." (Complaint Ex. A.) This document appears to characterize the nature of Phippen's status as administrative custody. (Id.) Phippen alleged that he initially believed that the action was for the purpose of his protection, based upon his claims that a particular corrections officer, Fiske, had been "stalking, harassing, and tormenting" Phippen. (Complaint ¶ 89.)
Phippen alleged that another "gang" of corrections officers brought him to a room and requested that he consolidate six (6) boxes of his property into four (4) boxes. Phippen averred he told Sergeant Hendrix that he believed he was entitled to two boxes and a cabinet for his belongings, but Sergeant Hendrix told him "to shut up." (Complaint ¶ 94.) During this period, Phippen alleged, he heard the voice of corrections officer Fiske "directing this theft like a Kingpin." (Complaint ¶ 92.) Phippen said that he stopped hearing this voice after he expressed his opinion to the corrections officers that the unidentified voice belonged to corrections officer Fiske. (Complaint ¶ 93.) Phippen asserted that as a consequence of this consolidation procedure, he again lost personal property. Phippen averred that he wrote a letter that night to Secretary of Corrections Beard as well as a letter "to the Courts," asking for a stay with regard to "all of [his] legal work." (Complaint ¶¶ 102-03.) Phippen averred that after two weeks, "the prison" asked him about a "piece of paper [that] . . . [he] had sent to the Warden." (Complaint ¶ 104.) Phippen described this paper as a "Praecipe and a 10 day notice." (Id.) Phippen averred that after he explained the meaning of the document to investigators, they immediately released him from the RHU. (Complaint ¶ 105.) Phippen claimed that DOC's action with regard to his placement in RHU and the treatment of his property was for the purpose of harassing, punishing, abusing, obstructing, and retaliating against him. (Complaint ¶¶ 88-110.) Phippen asserted that DOC's policy as expressed in its DC ADM 802(A)(6) provides that DOC must review the placement of an inmate in administrative custody within seventy-two (72) hours, but that in his case, he was kept in the RHU for two weeks. While alleging that he did not file a grievance regarding this alleged "occurrence" because Sergeant Hendrix did not supply him with a grievance form, Phippen did not allege that he ever requested a form.
The third "occurrence" about which Phippen complains occurred on February 15, 2010, when "the prison again seized [him] and put [him] in the RHU under another supposed Investigation." (Complaint ¶ 111.) Phippen suggests in his averments that a protective order he sought with regard to correctional officer Fiske prompted his return to the RHU as a retaliatory measure. (Complaint ¶ 112.) Phippen averred that DOC did not advise him of a reason why it was again placing him in the RHU. Phippen averred that Warden Nish visited him in the RHU and engaged Phippen in a conversation, regarding whether Phippen wanted to be released. Phippen responded to Warden Nash by expressing his desire to be placed in an area in the general prison population away from correctional officer Fiske. (Complaint ¶ 114.) Phippen averred that he received another DC-141, which indicated that Phippen had requested "self-confinement." Phippen contends that during this period of RHU confinement, he again was required to consolidate his property into four boxes, and he again sustained a loss of property. (Complaint ¶¶ 111-18.)
Phippen also described an event that allegedly occurred in May 2010, averring that a correctional officer accused Phippen of bumping into him. Shortly after that incident, Phippen alleged that six correctional officers took him to the RHU. According to Phippen's pleadings, he remained in the RHU for ninety (90) days, at which point he was returned to his prison cell. Phippen avers that during this period he was taken to the property room to consolidate his property, but that, unlike the other instances, this time a correctional officer, Sergeant Morcum, "left his property intact." (Complaint ¶ 121.) Phippen contends that near the end of this term in the RHU, on July 28, 2010, correctional officer Hendrix taunted him and continued to do so for the next ten weeks, whenever they saw each other. (Complaint ¶ 122.)
Phippen breaks down his complaint into the following primary causes of action: (1) breach of contract; (2) abuse of discretion; (3) retaliation; (4) access to courts; (5) conspiracy; and (6) fraud. DOC filed preliminary objections. DOC contended that the Board of Claims, rather than the trial court, has jurisdiction over breach-of-contract claims against Commonwealth agencies, such as DOC. Moreover, because the events upon which Phippen based his contract claims occurred before July 28, 2010, the six-month statute of limitations applicable to breach of contract claims barred such causes of action, which Phippen initiated in June 2011. With regard to Phippen's tort claims, DOC relied upon the two-year statute of limitations and the doctrine of sovereign immunity. With regard to Phippen's civil rights claims, DOC asserted that all of those claims arising more than two years before he filed his complaint were barred by the two-year statute of limitations. With regard to the civil rights claims not barred by the statute of limitations, DOC asserted that the doctrine of exhaustion of administrative remedies barred Phippen's claims.
The trial court sustained DOC's preliminary objections. The trial court, referencing the provisions of the Judicial Code commonly known as the Prison Litigation Reform Act (PLRA), 42 Pa. C.S. §§ 6601-6608, agreed with DOC's argument that the defenses it raised in response to Phippen's complaint barred all of his claims. Based upon its resolution of DOC's preliminary objections, the trial court dismissed Phippen's complaint.
The PLRA defines the term "[p]rison conditions litigation" as follows:
A civil proceeding arising in whole or in part under Federal or State law with respect to the conditions of confinement or the effects of actions by a government party on the life of an individual confined in prison.42 Pa. C.S. § 6601. The PLRA also includes a provision affecting the power of an inmate to pursue such claims:
(e) Dismissal of litigation.—Notwithstanding any filing fee which has been paid, the court shall dismiss prison conditions litigation at any time, including prior to service on the defendant, if the court determines any of the following . . . (2) The prison conditions litigation is frivolous or malicious or fails to state a claim upon which relief may be granted or the defendant is entitled to assert a valid affirmative defense, including immunity, which, if asserted, would preclude relief.42 Pa. C.S. § 6602(e).
On appeal to this Court, Phippen raises the following issues in his statement of questions involved:
This court's review of an order of a trial court sustaining preliminary objections is limited to considering whether the trial court erred as a matter of law or abused its discretion. E. Lampeter Twp. v. Cnty. of Lancaster, 696 A.2d 884 (Pa. Cmwlth. 1987). In considering preliminary objections, a trial court must resolve all doubt in favor of the non-moving party, and only in such circumstances where it appears with certainty that the plaintiff is not entitled to recovery. Id. The trial court need not accept as true pleaded facts that contain unwarranted inferences, conclusions of law, or argumentative allegations or expressions of opinion, but the trial court must accept as true those averments that are well-pleaded, along with all reasonable inferences arising from the well-pleaded facts. Wilson v. Marrow, 917 A.2d 357, 361 n.3 (Pa. Cmwlth. 2007).
1. Did the court overlook/fail to recognize that the property grievance out side of the Statu[t]e of Limitations . . . was prevented from being included in this suit by the defendants denying the plaintiff Access to the Courts . . . [?]
2. Did the court overlook that the DOC policy, along with the DOC Code of [E]thics . . . are a contract/tort/constitutional violation and a breach occurred when it was not followed[?]
3. Did the court fail to give the Plaintiff an opportunity to be heard[?]
We begin with the issue Phippen identifies as Question 2, which he develops by arguing that the trial court mischaracterized some of his claims as breach of contract, rather than as torts seeking the recovery of and/or damages associated with the loss of personal property, and, therefore, applied the wrong statute of limitations. Phippen argues that the two-year statute of limitations contained in Section 5524 of the Judicial Code, 42 Pa. C.S. § 5524, is applicable to his claims against DOC, as opposed to the six-month statute of limitations that Phippen attributes to breach of contract claims. In order to address this argument, we will examine the various claims raised by Phippen and consider whether they are barred by the applicable statute of limitations or other statutory provision or doctrine applied by the trial court.
Section 5524 of the Judicial Code, provides that "[t]he following actions and proceedings must be commenced within two years:"
(1) An action for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process.
(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.
(3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof.
(4) An action for waste or trespass of real property.
(5) An action upon a statute for a civil penalty or forfeiture.
(6) An action against any officer of any government unit for the nonpayment of money or the nondelivery of property collected upon on execution or otherwise in his possession.
(7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter.
We note initially that to the extent that Phippen's claims could be interpreted as attempting to state a cause of action under a breach of contract theory, the trial court sustained the preliminary objections based upon the six-month notice provisions applicable to claims against a governmental unit for "damages on account of any injury to his person or property." Section 5522(a) of the Judicial Code, 42 Pa. C.S. § 5522(a). Section 5522(a) of the Judicial Code does not pertain to a breach of contract claim, but rather to the notice that is required when a litigant claims damages to property. In other words, while this notice provision acts as a bar to claims for damages to property, it is not relevant to a claim that a litigant lost property because of a breach of contract.
Section 5522 of the Judicial Code, relating to six month limitations, provides, as follows:
(a) Notice prerequisite to action against government unit.--
(1) Within six months from the date that any injury was sustained or any cause of action accrued, any person who is about to commence any civil action or proceeding within this Commonwealth or elsewhere against a government unit for damages on account of any injury to his person or property under Chapter 85 (relating to matters affecting government units) or otherwise shall file in the office of the government unit, and if the action is against a Commonwealth agency for damages, then also file in the office of the Attorney General, a statement in writing.
. . .
(2) If the statement provided for by this subsection is not filed, any civil action or proceeding commenced against the government unit more than six months after the date of injury to person or property shall be dismissed and the person to whom any such cause of action accrued for any injury to person or property shall be forever barred from proceeding further thereon within this Commonwealth or elsewhere. The court shall excuse failure to comply with this requirement upon a showing of reasonable excuse for failure to file such statement.
. . .
(b) Commencement of action required.--The following actions and proceedings must be commenced within six months:
(1) An action against any officer of any government unit for anything done in the execution of his office, except an action subject to another limitation specified in this subchapter.
Notwithstanding the above, we note that DOC, in its preliminary objections, also relied upon the statute of limitations provision contained in the Commonwealth Procurement Code (Code), 62 Pa. C.S. § 1712.1, which provides in pertinent part:
(a) Right to claim.—A contractor may file a claim with the contracting officer in writing for controversies arising from a contract entered into by the Commonwealth.The Code broadly defines the term "contractor" as "[a] person that has entered into a contract with a Commonwealth agency." Section 103 of the Code, 62 Pa. C.S. § 103. Thus, to the extent that Phippen alleged that he had, by virtue of application of DOC's administrative policy, entered into a contractual relationship with DOC, the Code bars any claim arising from such contracts if a contractor does not seek review of the claim arising from the contract within six months of the date the claim accrues. Accordingly, based upon this provision, and, as indicated above, to the extent that Phippen alleges a breach of contract claim against DOC, we conclude that the trial court correctly sustained DOC's preliminary objection to Phippen's breach of contract claim.
(b) Filing of claim.—A claim shall be filed with the contracting officer within six months of the date it accrues. It a contractor fails to file a claim or files an untimely claim, the contractor is deemed to have waived its right to assert a claim in any forum. Untimely filed claims shall be disregarded by the contracting officer.
To the extent that Phippen's complaint asserts a tort cause of action, the trial court granted DOC's preliminary objection based on the statute of limitations contained in Section 5524(7) of the Judicial Code, 42 Pa. C.S. § 5524(7), with regard to Phippen's claims that arose more than two years before he filed his complaint—i.e., those claims that occurred more than two years before May 18, 2011 (all but the third occurrence, which Phippen alleged to have occurred on February 15, 2010). The trial court also granted DOC's alternative preliminary objection based on the preclusive immunity provisions contained in Sections 8521 and 8522 of the Judicial Code, 42 Pa. C.S. §§ 8521 and 8522, which bar tort claims against the Commonwealth unless the conduct which gave rise to the cause of action falls within one of the exceptions to sovereign immunity. Phippen does not argue that the trial court erred in its evaluation of DOC's preliminary objections raising sovereign immunity as a defense. Thus, for the purpose of our review, we can affirm the trial court's order to the extent that it sustained DOC's preliminary objections to all of Phippen's state tort claims on the ground of sovereign immunity.
Section 8521(a) of the Judicial Code, relating to sovereign immunity generally, provides:
(a) General rule.--Except as otherwise provided in this subchapter, no provision of this title shall constitute a waiver of sovereign immunity for the purpose of 1 Pa.C.S. § 2310 (relating to sovereign immunity reaffirmed; specific waiver) or otherwise.
The sole remaining claims in Phippen's complaint concern his allegations relating to alleged civil rights violations under 42 U.S.C. § 1983 (Section 1983). Those civil rights claims, which relate to actions occurring more than two years before Phippen filed his complaint, are barred by the statute of limitations contained in Section 5524 of the Judicial Code, which requires a litigant to commence an action for, among other things, damages to or recovery of property, nonpayment of money, or nondelivery of property in the possession of any officer of any government unit, and damages to persons and /or property based on negligent or intentional tortious conduct within two years of the actions giving rise to the claim. Thus, a two-year statute of limitation is applicable to these claims as well, and the trial court did not err in so concluding.
"With respect to claims pursuant to 42 U.S.C. § 1983, the Supreme Court has concluded that such claims are best characterized as personal injury actions for purposes of state statutes of limitations. Wilson v. Garcia, 471 U.S. 261 (1985). As such, claims which are brought pursuant to 42 U.S.C. § 1983 are also subject to a two-year statute of limitations in Pennsylvania. See 42 Pa. C.S. § 5524." Burger v. Borough of Ingram, 697 A.2d 1037, 1041 (Pa. Cmwlth. 1997).
Next, we will address whether the trial court erred in concluding that Phippen's Section 1983 claims relating to the third "occurrence" on February 10, 2010, and the alleged incidents in May and July 2010, are barred because Phippen failed to exhaust his administrative remedies. The PLRA provides for limitations of remedies for litigation involving violations of federal law: "Prison conditions litigation filed in or remanded to a court of this Commonwealth alleging in whole or in part a violation of Federal law shall be subject to any limitations on remedies established by Federal law or Federal courts with respect to the Federal claims." 42 Pa. C.S. § 6603. The Federal Prison Litigation Reform Act (FPLRA) contains a specific prohibition, barring inmates from bringing an action in court seeking to challenge an inmate's prison conditions until an inmate exhausts available administrative remedies. 42 U.S.C. § 1997e(a). The trial court sustained DOC's preliminary objections to Phippen's civil rights claims based upon the doctrine of exhaustion of administrative remedies. Phippen appears to contend that the grievance process was legally and constitutionally infirm, such that any failure on his part to employ the grievance process renders the doctrine of exhaustion of administrative remedies a defense that is unavailable to DOC. (Phippen Br. at 4 (citing Woodford v. NGO, 548 U.S. 81 (2006)).
Phippen, in discussing his Question no. 1, seeks to challenge the trial court's conclusion that Phippen failed to exhaust his available administrative remedies.
Phippen apparently claims that the grievance process was unavailable to him with regard to the May 2010 incident, because DOC's placement of him in isolation in the RHU unit precluded him from exercising his right to file a grievance. We agree with DOC that the facts Phippen has pleaded do not support his claims that the grievance system was not available or adequate. As DOC notes, Phippen averred that he did not file grievances regarding DOC's actions following the first "occurance," because he believed the grievance process would be futile: "The grievance process denied my claims on the gang of 7 so I did not generate a grievance on the second or third raid of my personal property because the grievance machinery is a SHAM/FRAUD. Thus I have exhausted all of my prison remedies." (Complaint, ¶ 175.)
Phippen's belief that the available remedy would be useless does not excuse the failure to first attempt to obtain relief through the available remedy. Cummings v. Crumb, 347 F. App'x 725 (3rd Cir. 2009). Phippen's admission that he did not file grievances established that he failed to exhaust an available administrative remedy. Ball v. SCI Muncy, 385 F. App'x 211 (3rd Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1006 (2011). Therefore, we conclude that the trial court did not err in sustaining DOC's preliminary objections based upon the statute of limitations, sovereign immunity, and the failure of Phippen to exhaust administrative remedies.
Phippen also appears to suggest that DOC's placement of him in the RHU in May 2010 precluded him from filing a grievance. As noted above, however, he averred in his complaint that he did not file a grievance because he did not believe he could be successful using that process. Consequently, his RHU argument is meritless. --------
Lastly, we will address Phippen's argument regarding his alleged inability to participate in the oral argument the trial court entertained without him. We disagree with Phippen's claim that he did not receive notice of the oral argument and that the trial court improperly denied him an opportunity to participate in the oral argument. Phippen essentially asserts that, because the trial court knew that he was incarcerated, the trial court should have taken the initiative to ensure Phippen's attendance at the argument. Although Phippen did submit a motion for extension of time, this motion addresses only the time for filing a brief, not a request to continue the oral argument, and significantly, no indication that he made any effort to attend the oral argument. Consequently, we agree with DOC that the trial court did not err in proceeding to conduct the oral argument on DOC's preliminary objections.
Accordingly, we affirm the trial court's order.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 17th day of August, 2012, the order of the Court of Common Pleas of Wayne County is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge
Section 8522 of the Judicial Code, relating to exceptions to sovereign immunity, provides, in relevant part:
(a) Liability imposed.--The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.
(b) Acts which may impose liability.--The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:
. . .
(3) Care, custody or control of personal property.--The care, custody or control of personal property in the possession or control of Commonwealth parties, including Commonwealth-owned personal property and property of persons held by a Commonwealth agency, except that the sovereign immunity of the Commonwealth is retained as a bar to actions on claims arising out of Commonwealth agency activities involving the use of nuclear and other radioactive equipment, devices and materials.